A different approach to parents' different levels of religiosity in child custody cases
VOLOKH at law.ucla.edu
Wed Sep 3 15:34:01 PDT 2008
Here's a different, and in my view better, approach to parents' different levels of religiosity in child custody cases:
Jackson v. Jackson, 2007 WL 5446673 (Ariz.App. Div. 1):
¶ 6 Mother argues that the family court erred in not counting in her favor the fact that Jeremy will receive more religious instruction if he is placed with her. We disagree. " '[C]onstitutionally, American courts are forbidden from interfering with religious freedoms or [from taking] steps preferring one religion over another.' " Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (App.1986) (quoting Munoz v. Munoz, 489 P.2d 1133, 1135 (Wash.1971)). Judges are not appropriate arbiters of whether it is in a child's best interest to be raised Muslim or Christian or to be raised more religious or less religious or not religious at all. See Smith v. Smith, 90 Ariz. 190, 193-94, 367 P.2d 230, 233 (1961) (First and Fourteenth Amendments to U.S. Constitution preclude changing the custody of a child based on a parent's religion); see also Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) ("No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.") Both the United States and Arizona constitutions require that in making a decision on custody, the judge does not put a thumb on the scale on the side of the parent whose religion or religious practices the judge or the majority favors.
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